The State's Duty of Self-Defence: Justifying the Expansion of Criminal Law

Abstract

Ordinarily, criminal law is governed by the harm principle and its two supporting principles: the minimalist principle and the principle of fair imputation. There are, however, offences that reach beyond the limitations that these principles impose. These offences are usually regarded as exceptions to the rule, based on the seriousness and the gravity of the potential harm. In recent years, with the rise in terrorist attacks, another justification have been voiced with regard to some such offences - the right of the state to defend itself against terrorism. In this paper I intend to examine the claim that the state is morally justified in creating criminal offences, which exceed the limitations normally imposed by the harm principle, minimalist principle and the principle of fair imputation by virtue of its right of self-defence, and its ability to establish an additional moral basis for criminalization. The advantage of such a justification is that it reconciles her at least some of the exceptions, while providing clear moral boundaries to the creation of such 'exceptional' offences.

I will argue that the idea of self-defence may found a moral justification for an extension of criminal law, though such a justification is more complicated than the straight-forward claim for a state's right of 'self-defence'. In fact, it is the individual citizens who may have a right of self-defence, which - subject to some conditions -may be transferred to the state. The state is then, so I will argue, under a duty to act in self-defence on behalf of its citizens and that duty may allow it to use criminal law beyond the 'ordinary' limitations imposed by the aforementioned general principles. Though, the implementation of the duty is dependent on the unique circumstances of the state, and the permission, too, is obviously limited in its scope.

I will argue that, indeed, self-defence may found a moral justification for an extension of the criminal law, as a derivative duty from the individual right to self-defence. However, this justification is limited only to instances in which such derivation is possible, and the derivative duty of self-defence is then limited by the internal limitations of the individual right of self-defence and subject to some modifications due to the state's unique characters as a 'defender'.